Monday, May 11, 2015

Federal Courts Exam 2015: Set in a (Partly) Fictional Alabama

by Michael Dorf

Below is the exam I gave to my Federal Courts students this past semester. It was an 8-hour open-book take-home with a 2500-word limit. With the exception of the events that occur in the future, all references to Alabama law are accurate. As always, comments are welcome but I will not grade submissions.
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This examination consists of three questions based on one unfolding scenario. The following facts pertain to all questions:

In late June 2015, the Supreme Court of the United States holds that state laws forbidding same-sex couples to marry violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment in Obergefell v. Hodges and its companion cases. One week later, the Alabama legislature passes a bill, the Constitutional Rights Assistance Program Act (“CRAP Act”). The CRAP Act provides, in pertinent part:

FindingsThe U.S. Supreme Court ruling in Obergefell v. Hodges is a usurpation of the right of the People, assembled by State, to define and change the Constitution, in violation of the Tenth Amendment. However, the Sovereign State of Alabama recognizes that even grossly erroneous rulings of the U.S. Supreme Court have the force and effect of law unless and until they are overruled or superseded by constitutional amendment. Accordingly, it is necessary for authorities of this Sovereign State to implement this ruling by facilitating homosexual marriages. But because the overwhelming majority of citizens of the State of Alabama are God-fearing heterosexuals, the institution of marriage is now subject to abuse by mere friends and roommates who happen to be of the same sex. To ensure the legitimacy of marriages sanctioned by the State while safeguarding the rights of homosexuals recognized in the Obergefell case, however erroneously, the State must adopt procedures for sorting actual homosexuals from pairs of heterosexuals illicitly seeking the benefits of marriage. The purpose of this Act is to assist homosexuals in exercising their constitutional rights.

Section 1Any person seeking recognition as married to another person of the same sex must wear a clearly visible pink triangle of at least six square inches in area on his or her outer clothing whenever he or she appears in public.

Section 2Each and every person, business, association, and government entity in the State shall treat as unmarried any individual claiming to be in a same-sex marriage if the person or agent of the business or government entity observes the individual in public without displaying the pink triangle described in Section 1.

Section 3No penalty other than the denial of married status described in Section 2 shall be imposed for any person’s failure to wear a pink triangle.

When the bill reaches his desk, Governor Bentley seeks an advisory opinion from the Alabama Supreme on the question of whether the CRAP Act “would violate any provision of the Alabama or federal Constitution.” Section 12-2-10 of the Alabama Code authorizes the issuance of such opinions. Although the Alabama Supreme Court has upheld the practice of issuing advisory opinions, such “opinions express the individual views of the Justices of the Court rather than the view of the Court itself—even where every member of the Court has joined in a single advisory opinion. Thus, advisory opinions do not bind those who request them, and their precedential authority is merely persuasive. Nevertheless, an advisory opinion may still be very useful as an indicator of how the Court is likely to rule in a case before it in which the same issues are raised.” Opinion of the Justices, 925 So.2d 193, 198-99 (Al. 2006).

The next day, Chief Justice Moore writes an opinion for a unanimous Alabama Supreme opining that the CRAP Act is constitutionally valid in its entirety. His opinion considers and rejects the federal free speech and equal protection claims but does not discuss any objections under the free speech and equal protection provisions of the Alabama Constitution. Accordingly, Governor Bentley signs the CRAP Act into law.

Two days after the enactment of the CRAP Act, Montgomery, Alabama police officer Felix Friendly receives an anonymous tip stating that the dead body of Victoria Victim can be found in the trunk of David Destro’s car, which is parked in a public lot. Officer Friendly quickly goes to the lot and locates the car. Using a crowbar, he opens the trunk, where he finds the still-warm corpse of Victim, who had apparently been killed by a single gunshot to the head. Destro is charged with murder. His lawyer files a pre-trial motion seeking to exclude the evidence of Victim’s body on the ground that it was obtained in violation of the federal Fourth Amendment as made applicable to Alabama by the Fourteenth Amendment. The trial judge denies the motion.

At trial, the prosecution calls Harry Husband to testify against Destro. Husband comes to court but Destro’s lawyer, on behalf of both Destro and Husband, objects that Husband—who was married to Destro in Massachusetts in 2012—cannot be required to testify, invoking Alabama Evidence Rule 504, which protects a “Husband-Wife Privilege.” The trial judge overrules the objection. She finds that, in light of Obergefell, the “Husband-Wife Privilege applies to same-sex spouses, but the CRAP Act also applies, and because neither Destro nor Husband is wearing the required pink triangle in this very public setting, the privilege cannot be invoked.” Lawyer immediately asks for a recess so that his “client and the witness may affix the triangles to their clothing,” but the trial judge denies the request, stating that “it is time-barred.” Husband then testifies that on the night before Victim’s body was found in Destro’s trunk, Destro told Husband that he, Destro, was “really ticked off at Victim,” his co-worker, because “she took the last cup of coffee in the employee lounge but didn’t make a new pot.”

Destro takes the witness stand and testifies that he has never fired a gun, that he did not kill Victim, and that he has no idea how her body ended up in his trunk. The prosecution offers no murder weapon or other evidence. After deliberating for half an hour, the jury convicts Destro. At the sentencing phase hearing, the prosecution offers expert testimony that Victim was still alive and conscious when she was placed inside the trunk of Destro’s car. The trial judge accepts the jury recommendation to sentence Destro to death, based on the findings that the murder was especially “heinous, atrocious, or cruel” and that this aggravating factor outweighs the mitigating evidence that Destro was active in his church and the community.

On direct appeal, Destro argues that there was insufficient evidence to convict him of murder beyond a reasonable doubt under Jackson v. Virginia, 443 U.S. 307 (1979), that the search violated the Fourth Amendment, and that it was reversible error under Obergefell to require Husband to testify. His claims are denied and the Alabama Supreme Court affirms his death sentence. Destro then files a federal habeas corpus action. He makes his Jackson claim, a Fourth Amendment claim, and an equal protection claim under Obergefell. He also argues that he is “actually innocent.” Attorneys for the state raise all of their best objections.

Regardless of how you answered Question 1, now assume that the federal district judge grants habeas relief—conditional release absent conviction after a new trial—on the ground that the admission of Husband’s testimony violated the Equal Protection Clause and that no procedural obstacles stand in the way of that ruling. Two days after that ruling, and while the state’s appeal of the grant of habeas relief is pending before the U.S. Court of Appeals for the Eleventh Circuit, Alabama citizens Linda Loving and Laura Quackenbush seek a marriage license from Tuscaloosa County Probate Court Judge Hardy McCollum. Citing the CRAP Act, Judge McCollum denies them the license, stating that “neither of you is wearing the pink triangle.” Loving and Quackenbush immediately file a lawsuit in federal district court in Alabama, naming as defendants McCollum and each of the members of the Alabama Supreme Court “in their individual and/or official capacities.” The lawsuit seeks “damages and injunctive relief for violations of state and federal constitutional rights to equal protection and free speech,” invoking 42 U.S.C. § 1983 and Ex Parte Young as causes of action, and alleging jurisdiction under 28 U.S.C. § 1331 and § 1367. Meanwhile, after the defendants in this civil case file motions to dismiss or, in the alternative, to abstain, the U.S. Court of Appeals for the Eleventh Circuit affirms the grant of habeas relief in the Destro case. The state announces that it plans to seek certiorari from the Supreme Court in Destro.

Question 2: Assume that, if the merits were to reach the Supreme Court, it would find that the CRAP Act violates the federal constitutional rights to equal protection and freedom of speech. What obstacles nonetheless stand in the way of Loving and Quackenbush obtaining the relief they seek? Evaluate the strength of those obstacles.

The following facts pertain only to Question 3:

While the motions to dismiss or abstain are pending before the federal district court, U.S. Senator Jeff Sessions (R-AL) introduces a bill, the Restoring And Preserving Sovereignty Of The States Act (RAPSOTSA) in the Senate Judiciary Committee. Its key provisions are as follows:

Section 1Notwithstanding any other provision of law, neither 42 U.S.C. § 1983, the judge-made doctrine of Ex Parte Young, nor any other provision of the U.S. Code, the Constitution, nor any judge-made doctrine of so-called “federal common law” shall be construed to grant a cause of action for damages, injunctive relief, declaratory relief, or any other relief to any person alleging that any State, state agent, state sub-division, or other person or entity acting on behalf of a State or one or more of its sub-divisions, whether in an official or individual capacity, has violated his or her federal rights by conditioning the recognition of his or her marital status on his or her wearing of a clearly visible pink triangle of at least six square inches in area on his or her outer clothing whenever he or she appears in public.

Section 2Notwithstanding any other provision of law, no court of the United States shall have jurisdiction to entertain a challenge to this Act, whether raised as a claim, a defense, or otherwise.

Section 3Nothing in this Act shall be construed to restrict any remedies provided by state law.

Section 4This Act shall take effect immediately upon passage and apply to all cases pending on or after passage.

Question 3: You are an intern for U.S. Senator Amy Klubochar (D-MN). Give her your assessment of whether the proposed RAPSOTSA is constitutional and whether there are good policy objections to it. Do not dwell on substantive objections to the requirements of the CRAP Act or RAPSOTSA; focus on “federal courts” issues.

Unknown, the "CRAP" bit is basically a joke. The other bit to me is just a bit too much. There can be lots of contrived stuff in these hypos, but forcing gays to wear pink triangles akin to Nazi Germany to me is a bit much.

I am a long time reader (and admirer) of this blog. I am also a strong supporter of the right of same sex couples to get married. And I would agree that the behavior of the anti-gay crowd in Alabama and elsewhere is ugly, mean-spirited, and legally wrong.

That said, I don't feel comfortable with the hypo's casual equation of SSM opponents with the NAZIs. Calling one's opponents NAZIs is a rhetorical cheap-shot - it demonizes the opposing side while trivializing the NAZI movement's actual crimes. And while SSM opponents might be on the wrong side of this, they are not NAZI-level wrong. In fact, most people who support SSM today opposed it just ten or fifteen years ago. Countless people (including our president) have changed their mind about SSM, and they've done so in record time. Likely, this is because they found SSM proponents' arguments legally and morally persuasive, as I do. But I doubt NAZI analogies changed anybody's mind about marriage equality, except to make them feel attacked and disrespected, and more likely to double down on their anti-gay feeling.

I should point out in Professor Dorf's defense that this is a Fed Courts class, not a Con Law class. It is at least arguable that:

a) Under the Court's AEDPA jurisprudence, so long as there is no clearly established caselaw that holds that forcing someone to wear a pink emblem is unconstitutional, that's the end of the inquiry and the defendant loses on that issue. Alternatively, and I'd have to look up the caselaw on this, it's also possible that under the AEDPA, the defendant couldn't get relief for a constitutional violation of his husband's rights.

Separately, on the dicta of Wis. v. Constantineau (sp?), it's plain that Congress can eliminate all lesser federal courts so long as it does not prevent the Supreme Court from reviewing state court decisions. Whether using that authority to discriminate against gays itself violates the Equal Protection Clause is a separate question.

Oh, I should say that the most straightforward AEDPA violation in the criminal case is the 4th Amendment Violation, presuming there is no potential exigency defense - does anyone know if it is clearly established whether a cop can ignore a warrant under the exigency exception when it can secure the property (here a car) pending a warrant?

@Joe: With the memory of proposal Anyone with the AIDS virus be required to have a tattoo on Them indicating such somewhat fresh in My memory, if the pink triangle idea were genuinely advocated I would not be surprised.

Even that disreputable proposal was made involving someone with a communicable disease a few decades ago. A pink triangle for simply being a same sex married couple, which directly relates to an action of the Nazis, would be even worse.

Someone proposing it, why not -- we saw some crazy things. It still is a pretty blatant hypo especially how up and front it is. It to me would be a better question even as a matter of law to ask something a tad bit more nuanced.

Again Joe, I think the point of the question was that the constitutional violation was patent. It's a Fed Courts class, and Professor Dorf wants the class to address the limits of federal jurisdiction, rather than the constitutional question itself. One way to focus the point - as well as to test whether students can segregate the procedure from the merits - is to make the merits obvious.

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